Delhi District Court
New Delhi vs Association Of Apartment Owners Of New ... on 19 August, 2014
IN THE COURT OF MS. VINEETA GOYAL, ADDITIONAL DISTRICT JUDGE
01, PATIALA HOUSE COURTS, NEW DELHI DISTRICT, NEW DELHI
MCA no. 30/13
Unique ID no. 02403C0109172013
Appeal presented on : 24.08 .2013
1. Sh. Harbans Singh
Alleged Returning Officer
N.D.H.F.O.A.
407, New Delhi House,
27, Barakhamba Road,
New Delhi - 110 001
2. Alleged Interim Committee
N.D.H.F.O.A.
407, New Delhi House,
27, Barakhamba Road,
New Delhi - 110 001
3. Sh. K.J. Sangar
203, New Delhi House
27, Barakhamba Road,
New Delhi - 110 001
4. Sh. S.C. Khaneja
30304, New Delhi House
27, Barakhamba Road,
New Delhi - 110 001
5. Sh.Vijay Mehta
201, New Delhi House
RCA No. 53/13, MCA No. 35/13 and MCA No. 30/13
Page 1 of 25
27, Barakhamba Road,
New Delhi - 110 001
6. Sh. Karan Bagga
501, New Delhi House
27, Barakhamba Road,
New Delhi - 110 001
7. Sh. Ashok Mehta
204, New Delhi House
27, Barakhamba Road,
New Delhi - 110 001
8. Sh. Ramesh Sharma
502, New Delhi House
27, Barakhamba Road,
New Delhi - 110 001
9. Sh. Pawan Bansal
503, New Delhi House
27, Barakhamba Road,
New Delhi - 110 001
10. Sh. M.L. Puri
407, New Delhi House
27, Barakhamba Road,
New Delhi - 110 001
11. Sh. S.L. Gupta
510, New Delhi House
27, Barakhamba Road,
RCA No. 53/13, MCA No. 35/13 and MCA No. 30/13
Page 2 of 25
New Delhi - 110 001
.... Appellants
versus
Association of Apartment Owners of New Delhi House (Regd.)
.... Respondents
Appearance : Sh. G.S. Arora, Ld. counsel for appellant.
Ms. Sunita Bharadwaj, Ld. counsel for respondent.
MCA no. 35/13
Unique ID no. 02403C0137422013
Appeal presented on : 01.10.2013
Sh. K.J. Sanger
President
Interim Executive Committee
New Delhi House Flat Owners Association
.... Appellant
versus
Association of Apartment Owners of New Delhi House (Regd.)
Through its President
H.M. Prabhakar,
Flat NO. 801, New Delhi House,
27, Barakhamba Road, New Delhi.
Govt. of NCT of Delhi
Through Registrar of Societies
Patparganj Industrial Area,
Delhi
.... Respondents
RCA No. 53/13, MCA No. 35/13 and MCA No. 30/13
Page 3 of 25
Appearance : Sh. G.S. Arora, Ld. counsel for appellant.
Ms. Sunita Bharadwaj, Ld. counsel for respondent no. 1.
Ms. Shubra Parashar and Sh. V. P. Singh, Ld. counsels for
respondent no. 2.
RCA no. 53/13
Unique ID no. 02403C0165482013
Appeal presented on : 29.10.2013
Govt. of NCT of Delhi
Through Registrar of Societies
Patparganj Industrial Area,
Delhi
.... Appellant
versus
Association of Apartment Owners of New Delhi House (Regd.)
Through its President
H.M. Prabhakar,
Flat NO. 801, New Delhi House,
27, Barakhamba Road, New Delhi.
.... Respondent
Appearance : Ms. Shubra Parashar and Sh. V.P. Singh, Ld. counsels for appellant.
Ms. Sunita Bharadwaj and Sh. R. K. Jain, Ld. counsels for
respondent.
RCA No. 53/13, MCA No. 35/13 and MCA No. 30/13
Page 4 of 25
Arguments concluded on : 07.08.2014
Judgment pronounced on : 19.08.2014
J U D G M E N T
This judgment shall dispose off three appeals (MCA No. 30/13, 35/13 & RCA No. 53/13) filed by the respective appellants against the orders dated 10.07.2013, 27.07.2013 and 30.08.2013 passed by Ld Senior Civil Judge, New Delhi as following:
MCA No. 30/13 : Appeal filed by Sh. Harbans Singh & ors impugning an order dated 27.07.2013 passed by Ld. Trial Court in CS no. 71/13 in conjunction with CS 53/13, thereby allowing application under Order 39 Rule 1&2 of CPC filed by Association of Apartment Owners of New Delhi House (Regd.) and restraining alleged activities of interim committee New Delhi House Flat owners Association (Regd.) and its members.
MCA No. 35/13 : Appeal filed by Sh. K.J. Sanger as President of interim executive committee of New Delhi House Flat Owners Association impugning order dated 10.07.2013 passed by Ld. Trial Court in suit no. 53/13 observing that on the basis of statement of Mrs. Madhubala Gupta, Inspector and RCA No. 53/13, MCA No. 35/13 and MCA No. 30/13 Page 5 of 25 submissions that nothing remains to be adjudicated and suit stands satisfied and the same is disposed off accordingly. The statement of Mrs. Madhubala Gupta is reproduced as below : On the basis of telephonic conversation with Mr. K. Mahesh Registrar of Societies I am giving this statement that the Registrar of Society shall immediately delete the name of the society, New Delhi House Flat Owners Association from its records and website and the Registrar shall issue certificate of cancellation of the registration of the dissolved erstwhile Society namely, New Delhi House Flat Owners Association. Further the Society, New Delhi House Flat Owners Association stands dissolved. The appellant has also impugned a subsequent order of Ld. Trial Court dated 30.08.2013 declining application filed under Order 47 Rule 1 to review the earlier order and declining the prayer of the applicant to plead as necessary party under Order 1 Rule 10.
RCA No. 53/13 Appeal filed by Govt of NCT impugning the order dated 10.07.2013 passed by the Ld. Trial Court in suit 53/13 alleging that it has been obtained by fraud and further impugning order dated 30.08.2013 declining the application for review.
RCA No. 53/13, MCA No. 35/13 and MCA No. 30/13 Page 6 of 25
2. The brief facts of the case as extracted from the main suit being CS 53/2013 are that the plaintiff/respondent, Association of Apartment Owners of New Delhi House (Regd.) (hereinafter referred to as AAONDH), filed a suit for mandatory and permanent injunction seeking directions to Govt. of NCT of Delhi to delete the name of New Delhi House Flat owners Association (Regd.) (hereinafter referred to as NDHFOA). In this suit the plaintiff / respondent impleaded only one defendant / appellant the Registrar of Society, Government of NCT of Delhi (State). It was alleged in the plaint that NDHFOA was formed in the year 2001 to look after the affairs of buildings and flats in the area known as New Delhi House but later on a new association AAONDH was formed. It was further claimed that the affairs of building were taken over by the new association form the erstwhile association and in a General Body meeting of the erstwhile association on 18.01.2013, it was resolved that NDHOFA stands dissolved as per the provisions of section 13 and 14 of the Society Registration Act, 1860. The plaintiff claimed that a number of communications were sent to the Govt. of NCT to delete the name of the erstwhile association from the records which continued to display the name of the erstwhile association on its website at registration number 40272. A prayer was made to issue directions to the Govt. for deleting the name of the erstwhile association. The aforesaid suit was filed on behalf of the new association by Sh. H.M. Prabhakar claiming to be the President of the new association AAONDH.
3. The suit was disposed off by the Ld Trial Court on 10.07.2013 on the basis of a statement of one Miss Madhu Bala Gupta, Inspector from the Registrar of Socities who RCA No. 53/13, MCA No. 35/13 and MCA No. 30/13 Page 7 of 25 deposed before Ld. Trial Court that the Registrar of Societies would delete the name of NDHOFA from its records and website and the Registrar shall issue certificate of cancellation of the registration of the dissolved erstwhile society namelyh NDHFOA.
Further the society NDHFOA stands dissolved. In the light of the statement of the official, the suit of the plaintiff was disposed as nothing remained to be adjudicated.
4. The defendant/appellant, Govt. of NCT, filed an application before Ld. Trial Court interalia seeking review of its order / judgment dated 10.07.2013 narrating the circumstances under which the court committed error by relying upon statement of an official who was not authorized/ competent to make such statement. 4.1 In the meantime, New Delhi House Flat owners Association (Regd.) also filed two separate applications i.e an application under Order 47 Rule 1 of CPC seeking review of the order dated 10.07.2013 and another application under Order 1 Rule 10 of CPC pleading that New Delhi House Flat owners Association (Regd.) was a necessary party and should have been impleaded before adjudication of the dispute. 4.2 Ld. Trial Court by a common order dated 30.08.2013 declined all the three applications; one application filed by the defendant / appellant Govt. of NCT and two applications filed by New Delhi House Flat owners Association (Regd.) / appellant. 5.0 It is also a matter of record that Association of Apartment Owners of New Delhi House (Regd.) after procuring orders of the court dated 10.07.2013 in suit no. 53/2013 RCA No. 53/13, MCA No. 35/13 and MCA No. 30/13 Page 8 of 25 filed another suit bearing number 71/2013 against (New Delhi House Flat owners Association), alleged interim committee and other members seeking a relief in the nature of permanent, mandatory injunction and declaration. An application under Order 39 Rule 1&2 of CPC was also filed praying that the interim committee New Delhi House Flat owners Association should be restrained as it has ceased to exist by virtue of orders dated 10.07.2013 passed in CS 53/2013 from acting illegally by issuing circulars, bills and other correspondences and interfering in any manner in the functioning of plaintiff / respondent association.
5.1 The Ld Trial Court passed an order dated 27.07.2013 allowing the application under Order 39 Rule 1 & 2 and alleged interim committee and New Delhi House Flat owners Association (Regd.) and its members were restrained from declaration of results of elections of its governing body till pending of the suit and further observed that plaintiff / respondent is protected till the disposal of miscellaneous application for review as well as setting aside order under section 151 of CPC filed in Suit no. 53/13. 6.0 As mentioned above the respective appellants being aggrieved from the impugned orders of the Ld. Trial Court passed in CS 53/2013 and CS 71/2013 filed three appeals as tabulated above. These appeals were heard together and the non appellant was provided opportunity to file suitable reply to the appeals. In response, the nonappellant, Association of Apartment Owners of New Delhi House (Regd.) filed written submissions raising various objections.
RCA No. 53/13, MCA No. 35/13 and MCA No. 30/13 Page 9 of 25
7. I have heard the arguments and perused the records the point wise findings raised by the parties are as under:
7.1 The first objection raised by non appellant / plaintiff is that the order dated 10.07.2013 is not a decree and as per the provisions of Civil Procedure Code the same is not appealable. The contention is based on the argument that Ld. Trial Court in the said order has merely recorded the statement of the official of the respondent and nothing has been adjudicated.
7.2 It would be relevant to reproduce the order of Ld. Trial Court dated 10.07.2013 which is as under:
"Miss Madhu Bala Gupta Inspector submits that plaintiff Society has been dissolved and the Registrar of Society shall issue the cancelation certificate in due course. The statement of representative of the defendant recorded separately.
In view of the statement and submissions nothing remains to be adjudicated as such the suit stands satisfied and the same is disposed off accordingly. Defendant is restrained and bound by its statement. In the intrest of justice no cost is imposed file be consigned to record room."
RCA No. 53/13, MCA No. 35/13 and MCA No. 30/13 Page 10 of 25 7.3 I have given careful consideration to the arguments but do not incline to agree to the contention that the order above is not a decree. The essential constituent of a 'decree' are that there must be a suit, there must be adjudication, the adjudication should be on the rights of the parties, there must be conclusive determination of rights and it should be formally expressed.
7.4 In a proceedings, where the defendant has chosen to concede in favour of the plaintiff the courts take recourse to passing short orders with limited expression. A perusal of the above order shows that Ld. Trial Court applied judicial mind on the statement of Miss Madhu Bala Gupta and on consideration of the same in the backdrop of the plaint came to a 'judicial conclusion' that nothing remains to be adjudicated. The court further determined the liability of the defendant in terms of its statement and directed that defendant is bound and restrained. The above order has been passed in a suit which has conclusively adjudicated the suit or says the prayers made in the suit. The order above has partaken the character of a 'Decree' and thus appealable. 8.0 Another set of objections raised by the non appellant were that appeals against the impugned order of Ld. Trial Court are not maintainable because the order dated 10.07.2013 against Government of NCT is based on the Admission of the defendant / appellant and as per section 96 of CPC, such decree is not appealable. It is further argued that the other orders of Ld. Trial Court declining the application of review filed by Government was under section 151 of CPC and no appeal is maintainable under RCA No. 53/13, MCA No. 35/13 and MCA No. 30/13 Page 11 of 25 CPC. In so far as the appeals by other appellants are concerned, it is contended that they were not respondents and thus incompetent to file appeal against the impugned order dated 10.07.2013 and further no appeal is maintainable against the orders passed by Ld. Trial Court upon the applications filed under section 151 of the CPC. In support of the argument the non appellant has relied upon catena of judgments which include Radha Kissen Chamria and orthers V. Keshardeo Chamria 1953/SCR/136, Durgesh Sharma V.Jayshree AIR 2009 SC/285, Rathindra Nath Bose Vs. Jyoti Bikash Ghosh & others AIR 1975/Calcutta 377, Santosh Kumar Vs. Karam Devi AIR 2009/ P&H/ 20, Desi Kedari Vs. Huzurabad Cooperative Marketing Society Ltd and others AIR 1994/AP/301 and P.K. Ramachandran Vs. State of Kerala and another AIR 1998/SC/2276. 8.2 Even though it is not specifically mentioned but non appellant mean that the order based on admission is a consent decree which as per section 96(3) of CPC is not appealable. In order to appreciate this objection it is imperative that the gamut of 'Consent decree' as contemplated under section 96 of CPC need to be understood. Hon'ble Supreme Court in the case of Daljit Kaur Vs. Muktar Steels, 2014 II AD (SC) considering this aspect examined two somewhat contradictory or supplementary judgments namely Pushpa Devi Bhagat Vs. Rajinder (2006) 5 SCC 566 and Kishun alias Ram Kishan Vs. Behari (2005) 6 SCC 300 and expounded the scope of appeal against consent decree. Both the cases are discussed in succeeding paragraphs. 8.3 In Pushpa Devi Bhagat case, even though the court held that consent decree if RCA No. 53/13, MCA No. 35/13 and MCA No. 30/13 Page 12 of 25 passed without any dispute cannot be appealed, yet in para 12 of the judgment the following was also held:
"....... the only remedy available to a party to a consent decree to avoid such consent decree, is to approach the court which recorded the compromise and made a decree in terms of it, and establish that there was no compromise. In that event, the court which recorded the compromise will itself consider and decide the question as to whether there was a valid compromise or not. This is so because a consent decree is nothing but contract between parties superimposed with the seal of approval of the court. The validity of a consent decree depends wholly on the validity of the agreement or compromise on which it is made. The second defendant, who challenged the consent compromise decree was fully aware of this position as she filed an application for setting aside the consent decree on 21.8.2001 by alleging that there was no valid compromise in accordance with law. For reasons best known to herself, the second defendant within a few days thereafter (that is on 27.8.2001) filed an appeal and chose not to pursue the application filed before the court which passed the consent decree. Such an appeal by the second defendant was not maintainable, having regard to the express bar contained in Section 96(3) of the Code......"
In the present case, the defendant / appellant Government of NCT not only immediately filed objection to the impugned order of Ld. Trial Court instantaneously RCA No. 53/13, MCA No. 35/13 and MCA No. 30/13 Page 13 of 25 but vigorously pursued by all means. The application filing the objections and review of the earlier order of Ld. Trial Court was dismissed without appreciating that the consent of the defendant / appellant was without any authority. The facts of the present case are squarely covered under the exception carved out in the Pushpa Devi Case (Supra). 8.4 Even Kishun alias Ram Kishun Case (Supra) can be usefully deployed in this case which has clearly laid down the following in para 6 of the judgment:
"...6. That apart, we are of the view that the High Court was in error in holding that the appeal filed by Kishun against the decree of Ld. Trial Court accepting a compromise which was disputed by him, was not maintainable. When on a dispute in that behalf being raised, an enquiry is made (now it has to be done in view of the proviso to Order 23 Rule 3 of the Code added by Act 104 of 1976) and the suit is decreed on the basis of a compromise based on that enquiry, it could not be held to be a decree passed on consent within the meaning of Section 96 (3) of the Code. Section 96 (3) contemplates non appealability of a decree passed by the court with the consent of parties. Obviously, when one of the parties sets up a compromise and the other disputes it and the court is forced to adjudicate on whether there was a compromise or not and to pass a decree, it could not be understood as a decree passed by the court with the consent of the parties. As we have noticed earlier, no appeal is provided after 1.2.1977, against an order rejecting or accepting a compromise after an enquiry under the proviso to Order 23 Rule RCA No. 53/13, MCA No. 35/13 and MCA No. 30/13 Page 14 of 25 3, either by Section 104 or by Order 43 Rule 1 of the Code. Only when the acceptance of the compromise receives the imprimatur of the court and it becomes a decree, or the court proceeds to pass a decree on merits rejecting the compromise set up, it becomes appealable, unless of course, the appeal is barred by Section 96 (3) of the Code. We have already indicated that when there is a contest on the question whether there was a compromise or not, a decree accepting the compromise on resolution of that controversy, cannot be said to be a decree passed with the consent of the parties. Therefore, the bar under Section 96 (3) of the Code could not have application......."
(Emphasis added) In the above, Hon'ble Court has again given a conscious consideration to the cases where even if the decree passed appear to be a compromise or consent decree but one of the party immediately objected to the consent or compromise. Such cases become appealable because the very basis of the decree is shaken.
8.5 In the present case the order which partaken the character of decree has been passed based on statement of one of the officials of the respondent organ of the Government which was immediately contested. The defendant / appellant learning about the passing of decree based on the statement of one of the officials immediately moved an application u/s151 of CPC apprising the court of the detailed circumstances under which unauthorized statement of the official has been elucidated. The appellant immediately placed on record its dissent from any statement made. Subsequently, even RCA No. 53/13, MCA No. 35/13 and MCA No. 30/13 Page 15 of 25 departmental proceedings were initiated against the erring official. In such circumstances, the provisions of CPC cannot be blindfolded to interpret that no remedy is available. The situation would have been different if the defendant / appellant had not contested the compromise decree before Ld. Trial Court and would have straight away run for an appeal, in that case it would have got caught into the trappings of the judgment of the case in Pushpa Devi (Supra). But since the defendant / appellant have filed objections and pursued it too thus both the cases Pushpa Devi and Kishun alias Ram Kishun support the contention of the defendant / appellant that the appeal against the impugned order dated 10.07.2013 is maintainable.
8.6 Another issue raised by the plaintiff / non appellant is that the appeal against the orders of Ld. Trial Court filed by appellant who was not a party as defendants before Ld. Trial Court is not appealable. The facts on record are that in the suit no. 53/13 there was only one respondent i.e the Registrar of Society, Government of NCT of Delhi. In this suit the society sought to be dissolved namely New Delhi House Flat Owners Association was not arrayed as defendant by the plaintiff / nonapplicant. However, after passing of the order by Ld. Trial Court on 10.07.2013 in favour of the plaintiff / nonapplicant, this erstwhile association also moved two applications on 19.07.2013 interalia praying review of the order dated 10.07.2013 and in second application under Order 1 Rule 10 of CPC for impleading it as necessary party. These applications were disposed off vide order of Ld. Trial Court on 30.08.2013. These orders have been impugned in appeal before this court.
RCA No. 53/13, MCA No. 35/13 and MCA No. 30/13 Page 16 of 25 The nonappellant would contend that since New Delhi House Flat Owners Association was not a party to the suit thus inherently carries no right to appeal the orders against another defendant. It would further argue that the orders of Ld. Trial Court on the application for impleading as necessary party filed under O1 R 10 read with section 151 CPC is not appealable.
8.7 I have given careful consideration to the objections of plaintiff / nonappellant and do not find any force. It is useful to refer to judgement in the case of Hardevinder Singh Vs. Paramjit Singh, 2013(1)CTC 409 where Hon'ble Supreme Court on the issue of filing of appeal by a non party referring to various cases held as under:
13. Presently, it is apt to note that Sections 96 and 100 of the Code make provisions for preferring an appeal from any original appeal or from a decree in an appeal respectively. The aforesaid provisions do not enumerate the categories of persons who can file an appeal. If a judgment and decree prejudicially affects a person, needless to emphasize, he can prefer an appeal. In this context, a passage from Smt. Jatan Kanwar Golcha v. M/s. Golcha Properties Private Ltd.[ AIR 1971 SC 374] is worth noting: ".........It is well settled that a person who is not a party to the suit may prefer an appeal with the leave of the appellate Court and such leave should be granted if he would be prejudicially affected by the RCA No. 53/13, MCA No. 35/13 and MCA No. 30/13 Page 17 of 25 judgment......."
14. In State of Punjab v. Amar Singh and another[AIR 1974 SC 994], Sarkaria, J., while dealing with the maintainability of an appeal by a person who is not a party to a decree or order, has stated thus: ".......Firstly there is a catena of authorities which, following the doctrine of Lindley, L.J., in re Securities Insurance Co., (1894) 2 Ch 410 have laid down the rule that a person who is not a party to a decree or order may with the leave of the Court, prefer an appeal from such decree or order if he is either bound by the order or is aggrieved by it or is prejudicially affected by it. As a rule, leave to appeal will not be refused to a person who might have been made ex nominee a party â€" see Province of Bombay v.
W.I. Automobile Association, AIR 1949 Bom 141; Heera Singh v. Veerka, AIR 1958 Raj 181 and Shivaraya v. Siddamma, AIR 1963 Mys 127;
Executive Officer v. Raghavan Pillai, AIR 1961 Ker 114. In re B, an Infant (1958) QB 12; Govinda Menon v. Madhavan Nair, AIR 1964 Ker 235...."
15. In Baldev Singh v. Surinder Mohan Sharma and others[(2003) 1 SCC 34], a three Judge Bench opined that an appeal under Section 96 of the Code would be maintainable only at the instance of a person aggrieved by and dissatisfied with the judgment and decree. In the said case, while dealing with the concept of 'person aggrieved', the Bench observed thus: "...........A person aggrieved to file an appeal must be one whose right is affected by reason or the judgment and decree sought to be impugned. It is RCA No. 53/13, MCA No. 35/13 and MCA No. 30/13 Page 18 of 25 not the contention of Respondent 1 that in the event the said judgment and decree is allowed to stand, the same will cause any personal injury to him or shall affect his interest otherwise........"
16. Be it noted, in the said case, the challenge in appeal was to the dissolution of marriage of the appellant therein and his first wife which, this Court held, would have no repercussion on the property in the suit and, therefore, the High Court was not justified in disposing of the civil revision with the observation that the revisionist could prefer an appeal.
17. In Sahadu Gangaram Bhagade v. Special Deputy Collector, Ahmednagar and another[(1970) 1 SCC 685], it was observed that the right given to a respondent in an appeal is to challenge the order under appeal to the extent he is aggrieved by that order. The memorandum of crossobjection is but one form of appeal. It takes the place of a cross appeal. In the said decision, emphasis was laid on the term "decree".
18. After the 1976 amendment of Order 41 Rule 22, the insertion made in subrule (1) makes it permissible to file a crossobjection against a finding. The difference is basically that a respondent may defend himself without taking recourse to file a crossobjection to the extent the decree stands in his favour, but if he intends to assail any part of the decree, it is obligatory on his part to file the cross objection. In Banarsi and Others v. Ram Phal (supra), it has been observed that the amendment inserted in 1976 is clarificatory and three situations have been adverted to therein. RCA No. 53/13, MCA No. 35/13 and MCA No. 30/13 Page 19 of 25 Category No. 1 deals with the impugned decree which is partly in favour of the appellant and partly in favour of the respondent. Dealing with such a situation, the Bench observed that in such a case, it is necessary for the respondent to file an appeal or take crossobjection against that part of the decree which is against him if he seeks to get rid of the same though he is entitled to support that part of the decree which is in his favour without taking any crossobjection. In respect of two other categories which deal with a decree entirely in favour of the respondent though an issue had been decided against him or a decree entirely in favour of the respondent where all the issues had been answered in his favour but there is a finding in the judgment which goes against him, in the preamendment stage, he could not take any crossobjection as he was not a person aggrieved by the decree. But postamendment, read in the light of explanation to subrule (1), though it is still not necessary for the respondent to take any cross objection laying challenge to any finding adverse to him as the decree is entirely in his favour, yet he may support the decree without cross objection. It gives him the right to take crossobjection to a finding recorded against him either while answering an issue or while dealing with an issue. It is apt to note that after the amendment in the Code, if the appeal stands withdrawn or dismissed for default, the crossobjection taken to a finding by the respondent would still be adjudicated upon on merits which remedy was not available to the respondent under the RCA No. 53/13, MCA No. 35/13 and MCA No. 30/13 Page 20 of 25 unamended Code.
19. At this juncture, we may usefully reproduce a passage from Banarsi and others (supra) wherein it has been stated thus: "Sections 96 and 100 CPC make provision for an appeal being preferred from every original decree or from every decree passed in appeal respectively; none of the provisions enumerates the person who can file an appeal. However, it is settled by a long catena of decisions that to be entitled to file an appeal the person must be one aggrieved by the decree. Unless a person is prejudicially or adversely affected by the decree he is not entitled to file an appeal. See Phoolchand v. Gopal Lal,Jatan Kumar Golcha v. Golcha Properties (P) Ltd. (supra) and Ganga Bai v. Vijay Kumar No appeal lies against a mere finding. It is significant to note that both Sections 96 and 100 CPC provide for an appeal against decree and not against judgment."
8.8 The appeals filed by New Delhi House Flat Owners Association against the orders of Ld. Trial Court are maintainable as its rights are prejudicially affected by the impugned orders. In summation the argument of the non appellant / plaintiff regarding non maintainability of appeals is dismissed.
9.0 The first issue to be decided on merits of the appeal has been raised in RCA no. 53/13, where the appellant the Registrar of Societies has contended that the order dated RCA No. 53/13, MCA No. 35/13 and MCA No. 30/13 Page 21 of 25 10.07.2013 not sustainable because the statement of Mrs. Madhu Bala Gupta employee of the appellant /defendant was neither authorized nor competent to make such binding statement. The statement of Miss Madhu Bala Gupta is both a misrepresentation and in view of her not being authorized to make such statement it is constructive fraud. Fraud is proved when it is shown that a false representation has been made (i) knowingly, or
(ii) without belief in its truth, or (iii) recklessly, careless whether it be true or false. Suppression of a material document would also amount to a fraud on the court. (Gowrishankar & Anr. Vs. Joshi Amba Shankar Family Trust & Ors. AIR 1996 SC 2202; Ram Chandra Singh Vs. Savitri Devi & Ors. (2003) 8 SCC 319; Roshan Deen Vs. Preeti Lal AIR 2002 SC 33; Ram Preeti Yadav Vs. U.P. Board of High School & Intermediate Education AIR 2003 SC 4628; and Ashok Leyland Ltd. Vs. State of Tamil Nadu & Anr. AIR 2004 SC 2836).
9.1 It is no more res integra that any decree obtained by way of fraud or misrepresentation does not stand on its feet. It is duty of the court to set right the misfeasance at the earliest. The order of Ld. SCJ dated 10.07.2013, passed in suit no. 53/2013 was based on admission of the employee of the defendant / appellant department to the extent that the name of New Delhi House Flat owners Association (Regd.) shall be removed from the records and in these circumstances the relief sought by the plaintiff / nonappellant was being given by the defendant / applicant department itself. However in the subsequent proceedings before Ld. Trial Court when the defendant / appellant department pleaded that the particular official had no powers to RCA No. 53/13, MCA No. 35/13 and MCA No. 30/13 Page 22 of 25 make admission, it was incumbent upon Ld. Trial Court to declare that the order dated 10.07.2013 has been passed without any sustainable authority or has been obtained by playing fraud. The sustainability of order dated 10.07.2013 is not possible as it has been obtained by misrepresentation and without any authority. In the line of the arguments above, the order of Ld Trial Court dated 30.07.2013 dismissing the application for review of earlier order is also not sustainable. Both the orders of Ld. Trial Court are set aside and the suit is remanded back to Ld. Trial Court to decide denovo from the stage as if no statement of Miss Madhu Bala Gupta, Inspector has been recorded. The appeal RCA no. 53/13 as above is allowed in the terms mentioned above.
10. MCA No. 35/13 : filed by K.J. Sanger as President of interim executive committee of New Delhi House Flat owners Association impugning order of Ld. Trial Court dated 10.07.2013 in suit no. 53/13 thereby declaring the dissolution of the Association and impugning a subsequent order dated 30.08.2013 declining application filed under Order 47 Rule 1 of CPC to review the earlier order and declining the prayer of the applicants to plead as necessary party under Order 1 Rule 10 of CPC.
In view of the discussion above, since the order of Ld. Trial Court dated 10.07.2013 has been set aside in another appeal RCA No. 53/13, therefore the appeal to that extent is infructous whereas the appellant has also challenged the order of Ld. Trial Court declining application under Order 47 Rule 1 of CPC vide order dated 30.08.2013. In consideration of the fact that Interim Executive Committee New Delhi House Flat RCA No. 53/13, MCA No. 35/13 and MCA No. 30/13 Page 23 of 25 owners Association is necessary party for adjudication of suit, therefore the order of Ld. Trial Court is set aside and this appellant is allowed to be impleaded as defendant in the suit. Ld. Trial Court will provide an opportunity to this appellant / defendant to file Written Statement on the plaint of the suit.
11. MCA No. 30/2013: Filed by Sh. Harbans Singh and others impugning an order dated 27.07.2013 passed in CS 71/13 in conjunction with CS 53/13, thereby allowing application under Order 39 Rule 1&2 of CPC filed by AAONDH seeking restrain of activities of non existing NDHFOA. A perusal of the impugned order shows that Ld. Trial Court was persuaded by the fact that NDHFOA on the date of filing of application under Order 39 Rule 1 of CPC by AAONDHA was a nonexistent society, thus the relief sought by the applicant/ plaintiff / nonapplicant was allowed and declaration of results was restrained. I have given careful consideration to the facts of the case and find that in view of the discussion above the reasoning given by Ld. Trial Court cannot be sustained. Merely because by an erroneous order society has been assumed to be nonexistent is unsustainable. However, on merits under a circumstance where there exists a judicial order spelling death kneel on the existence of Society per se, there can be no urgency understood for election and change of management. The order of Ld. Trial Court is sustained that status quo of non declaration of results should be maintained. Resultantly appeal MCA 30/2013 is dismissed.
12. The parties of appeal MCA 35/2013 and RCA 53/2013 should appear before Ld. RCA No. 53/13, MCA No. 35/13 and MCA No. 30/13 Page 24 of 25 Trial Court on 19.09.2014 for further proceedings.
No order as to cost. Appeal files be consigned to record Room. Trial Court Record be sent back.
Pronounced in the open Court (VINEETA GOYAL)
on 19.08.2014. Additional District Judge1
New Delhi District : PHC
New Delhi : 19.08.2014
RCA No. 53/13, MCA No. 35/13 and MCA No. 30/13
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